Pending before the Court in this prisoner civil rights action is a Motion to Dismiss filed by Defendants April Dawson, M.D., and Kathy Niecko. (Dkt. 17.) Plaintiff has filed a Response, and Defendants have filed a Reply. (Dkts. 20, 21.)

Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court will decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

REVIEW OF DEFENDANTS' MOTION TO DISMISS

Defendants assert that many of the claims in Plaintiff's Complaint are subject to dismissal with prejudice because his claims were filed beyond the statute of limitations period. Defendants argue that the remaining claims were not properly exhausted through the prison's administrative grievance process before this action was filed, and are subject to dismissal without prejudice. Defendants also assert that Plaintiff's state law claims should be dismissed for failure to follow the statutory prerequisites for bringing medical malpractice claims. The Court will consider each argument.

1. Background

Plaintiff alleges that Defendants Dr. Dawson and Ms. Niecko provided medical care for his shoulder injury in a deliberately indifferent manner between 2004 and 2012, while Plaintiff was imprisoned at the Idaho State Correctional Institution (ISCI). Plaintiff's Complaint was notarized and filed on June 12, 2012. (Dkt. 3.) Earlier in this action, Judge Bush required Plaintiff to specify which acts complained of occurred within the statute of limitation period and to specify whether Plaintiff believed any grounds for equitable tolling existed. In response, Plaintiff filed an Amended Complaint and an Affidavit. (Dkts. 10, 11.)

In 2004, Plaintiff was experiencing shoulder dislocation and pain. (Plaintiff Aff., Dkt. 10-1, p. 3.) He repeatedly complained to Dr. Dawson in 2004, but alleges that Dr. Dawson told him nothing could be done to fix his shoulder or alleviate his pain, and she prescribed only Ibuprofen and an extra pillow. She allegedly ignored his complaints of shoulder dislocation, and told him to "learn to live with it." (Plaintiff Aff., Dkt. 11, pp. 3-4.)

Plaintiff attempted to live with the pain for the next few years, but his dislocations became more frequent and the pain became severe and chronic. (Plaintiff Aff., p. 5.) In 2008, his shoulder pain became almost unbearable and his shoulder dislocations were so frequent that he had to tie his right arm across his chest to keep it from dislocating as he slept. ( Id., p. 5.)

In 2008, Dr. Dawson allegedly told Plaintiff that nothing could be done for his shoulder, and she did not see the need for an extra pillow. ( Id., pp. 5-6.) Plaintiff filed a grievance form, asking to see an orthopedic specialist for his shoulder. He noted that his shoulder constantly hurt, and pointed out the fact that many injuries are not obvious from an x-ray. (Zortman Aff., Ex. D, Dkt. 17-5, pp. 2-3.) He stated that if he did not receive a referral, he would file a lawsuit. Ms. Niecko responded to the grievance by stating that the x-ray was normal, and he would not receive an orthopedic visit or an extra pillow. (Zortman Aff., Ex. D, Dkt. 17-5, p. 3.) Ms. Niecko said, however, that Plaintiff would be scheduled for a second opinion with another prison doctor, Dr. Garrett. ( Id. ) Plaintiff's grievance appeal was denied by Jan Epp. (Dkt. 17-5, p. 3.) Plaintiff alleges that instead of asking Dr. Garrett, a prison doctor, for a second opinion in 2008, Ms. Niecko should have sent Plaintiff to an orthopedist. ( Id., pp. 6-7.)

In 2009, Plaintiff states that his shoulder would become dislocated simply by reaching out to pick up a glass of water or putting on a shirt. (Plaintiff Aff., Dkt. 11, p. 9.) As a result, he got only a couple of hours of sleep each night. ( Id., p. 10.) In 2009, Dr. Dawson allegedly performed only a superficial examination on Plaintiff and referred him to physical therapy. ( Id., p.10.)

In 2009 or 2010, Plaintiff saw a physical therapist. Plaintiff was not able to do even the most basic exercises, and the physical therapist allegedly told Plaintiff that his shoulder appeared severely atrophied and had all of the indicators of a seriously unstable shoulder. ( Id., p. 10.)

On March 16, 2010, Plaintiff was examined by an orthopedic specialist, Dr. Gustavel, who recommended surgery to reconstruct Plaintiff's shoulder. Plaintiff alleges that Dr. Gusvael said that an x-ray of Plaintiff's shoulder showed that it was not normal. Plaintiff received the surgery three months later, on June 11, 2010. ( Id., pp. 10-11.)

On August 22, 2010, Plaintiff filed a grievance, complaining of the inadequate medical care received prior to his surgery, and also inadequate care received after the surgery. On August 26, 2010, the grievance coordinator returned the grievance to Plaintiff, showing; "As stated in your [2008] grievance, that has already been grieved []. Any further action on this issue needs to be through the legal process." (Zortman Aff., Dkt. 17-2, p. 6; Dkt. 20-1, p. 2.)

Plaintiff filed this lawsuit nearly two years later, on June 12, 2012. (Dkt. 3.) He sued Correctional Medical Services (CMS, now Corizon), Dr. Alice (April) Dawson, Dr. Garrett, Lorna Huffman, Kathleen Niecko, and Jan Epp. He was permitted to proceed on his Amended Complaint against Dr. Dawson, Kathleen Niecko, and Jan Epp. (Dkt. 10, 13.) To date, only Dr. Dawson and Ms. Niecko have been served.

Because Plaintiff has asserted several different reasons to explain why he should be permitted to maintain his claims for inadequate medical care beginning in 2004 in a lawsuit filed in 2012, the Court will review several different legal theories that may serve to render those claims timely.

(1) Accrual - Discovery Rule

Although the state statute of limitations governs the time period for filing a claim, federal law governs when a claim accrues. Elliott v. City of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994). The Ninth Circuit has determined that a claim accrues when the plaintiff knows, or should know, of the injury that is the basis of the cause of action. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Under this "discovery rule, " the statute begins to run once a plaintiff knows of his injury and its cause. Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986).

In medical cases, it is often difficult for a patient to "discover" his injury when being treated by a physician upon whom he is relying for expert opinions and care.

In Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983), in the context of an FTCA claim, the court explained that a patient must know or have reason to know both the existence and the cause of the injury:

When a physician's failure to diagnose, treat, or warn a patient results in the development of a more serious medical problem than that which previously existed, identification of both the injury and its cause may be more difficult for a patient than if affirmative conduct by a doctor inflicts a new injury. Where a claim of medical malpractice is based on the failure to diagnose or treat a pre-existing condition, the injury is not the mere undetected existence of the medical problem at the time the physician failed to diagnose or treat the patient or the mere continuance of that same undiagnosed problem in substantially the same state. Rather, the injury is the development of the problem into a more serious condition which poses greater danger to the patient or which requires more extensive treatment. In this type of case, it is only when the ...

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